Defending Self-Replication

Sighs of relief echoed throughout the biotech patent bar last Tuesday as attorneys logged onto the U.S. Supreme Court website and read the transcript of oral arguments in Bowman v. Monsanto Co.

Although the case involves patents on genetically modified seeds produced by or under license from Monsanto, it has broad implications for the biotech industry, especially for inventions that are relatively easily copied, such as cell lines used for medical research or treatment.

While it is impossible to predict a court ruling with certainty based on oral arguments, the justices sent clear signals that they will not eliminate patent protections for "self-replicating" inventions.

In addition, however, the Supreme Court could use Monsanto as a vehicle to sort out conflicting lower court decisions on the rights of patent holders to impose conditions on the use of their products.

A decision addressing conditional sales could have implications for companies in a wide range of businesses, including the sale of reagents that can be used for both research and commercial purposes.

Treating exhaustion

Last week's arguments pitted court-appointed attorneys for Hugh Vernon Bowman, a 75-year-old small-scale farmer, against the world's largest agricultural biotech company, which hired Seth Waxman, a former solicitor general and highly experienced Supreme Court litigator.

There is no dispute about the facts of the case.

Bowman acknowledges he purchased soybeans from a grain elevator near his Indiana farm and, instead of feeding them to chickens or processing them into oil - the usual uses for commodity soybeans - he planted them. This is unusual for a number of reasons, including...